All About Common Law Marriage
Common law marriage is a legal union between two people that happens without a formal ceremony or license. Over time, it has become less common, with only 10 states, the District of Columbia , and three Native American tribes today recognizing the union. The union generally has the following common characteristics:
- The parties agree to be married
- The parties live together as husband and wife
- The couple can have a shared financial liability
- The relationship is monogamous; neither person can have multiple spouses
- The couple must be eligible for marriage and capable of entering into a traditional marriage
- There is evidence of the couple’s intent to be married and share the responsibilities of a committed relationship
- The couple can identify themselves as being married, like using the same last name
Georgia does not recognize common law marriages. However, the state does recognize common law marriages entered into before the July 1, 1977, cut-off date.
How Georgia Handles Common Law Marriage
While Georgia has a long history of recognizing common law marriage, the law was changed in 1997. Currently, common law marriages may not be entered into except in very limited circumstances that include having entered into such a marriage before 1997 and having been recognized by Georgia courts, or having entered into marriage and filed with a professional football organization as a spouse of a football player before March 18, 1976, or having entered into a common law marriage subsequent to March 1997 after a subsequent marriage ceremony that complied with Georgia law in all respects. O.C.G.A. §§ 19-3-1; 19-3-3. In conjunction with the above, O.C.G.A. §19-3-4 restates that "marriage in all cases is a civil contract, to which consent of the parties capable in law of contracting is essential, and marriage to which the consent of any other person or persons is not necessary." The short answer is that no, Georgia does not recognize common law marriages. Common law marriages entered into prior to 1997 are recognized and can be proven either by producing an actual court finding that recognizes such a common law marriage or by a probate court record showing that the couple received their marriage license prior to 1997, lived together as husband and wife, held themselves out to others as husband and wife, and stated that they were married. This evidence pointing toward the existence of a common law marriage is supplemented by an actual "court finding"—generally, an order of a trial court determining that a common law marriage exists. In the absence of evidence sufficient to satisfy the probate court that a common law marriage exists, a common law marriage is presumed not to exist and the probate court will refuse to admit the will. When examined further, however, the above presumption may actually be rebuttable, despite the language in O.C.G.A. § 19-3-1. It appears that the probate court may decide, based on insufficient evidence that a common law marriage exists, to treat the parties as having never married (this is particularly true for common law marriages entered into after 1997) in the context of distributing the estate of someone who died purportedly leaving behind a common law spouse and therefore leaving behind a will made without being married to that spouse. The most accurate summation of this idea is found in the following case: [T]he Georgia courts do not consider common law marriage as a valid, recognized form of marriage in the absence of statutory authority or an acknowledgment of such marriage by judgment of a court of competent jurisdiction. The presumption [in O.C.G.A. § 19-3-1] has no application in the event that there is no written evidence that the couple complied with statutory requirements designed to establish the marriage relationship. In the absence of such evidence, the presumption that the parties have entered into a marriage would be overcome by the negative inference that arises from the fact that the parties nevertheless continued to file documents as unmarried individuals even though they had the ability to marry or to renounce the documents and obtain a license to marry. In re Estate of Melton, 735 S.E.2d 616, 618 (Ga. Ct. App. 2012). See also Smith v. Thomas, 512 S.E.2d 652 (Ga. Ct. App. 1999).
How this Affects Couples in Georgia
Couples residing in Georgia who believe they are in a common law marriage need to be aware of the ruling that Georgia does not recognize common law marriage. Common law marriage does not create any rights in Georgia between a couple. There are many areas of the law that depend on the status of the individuals involved. For instance, tax law, retirement law, property law, and family law (including alimony, and child support) are areas in which a couple’s rights depend on their statutory status as spouses or as unmarried individuals. If the governing law does not recognize a common law marriage, the couple may have the status of merely lived together and held themselves out to others as husband and wife but have no legally recognized status as husband and wife. This could create "grey areas" in the law, and there is not always certainty as to how the law applies to a situation.
It appears that Georgia’s Executive and Legislative branches were designedly silent on the law of common law marriage to show that it was not recognized in the state of Georgia. The only time the Legislature attempted to abolish common law marriage was in 1975; however, its enactment was vetoed by the then Governor of Georgia.
A live relationship existed between five women and five men, under circumstances of trial court findings that the parties’ acts and conduct were inconsistent with a husband and wife relationship. Each of these men, however, was required to pay alimony to his female "spouse," relying upon the decision date of Beecher v. Beecher, 242 Ga. 338, 249 S.E.2d 578 (1978), in which the Supreme Court held that cohabitation is a factor to be considered. However, the trial court awarded the five women alimony based on a "joint materialistic effort" theory, although it was found that, "no joint bank accounts were created, no joint real estate was purchased and no joint property or personal assets were vested." Further, that "[n]one of the witnesses testified that the defendants held themselves out as being married to anyone other than their legal spouse at the time the acts complained of occurred." But various people stated that the five women had told them that they were married to the five men.
The Georgia Supreme Court held that the trial court had erred in awarding alimony on a "non-marriage joint materialistic effort theory" and that the parties’ conduct showed that relationships involved "neither the intention of being legally married nor the sharing of property, finances and support as envisioned by the Georgia alimony statutes … , nor the intention of engaging in any other marital relationship or its incidents … ." The trial court awarded alimony and Georgia Supreme Court reversed, without modifying the order (and saying that alimony was sought under the factually erroneous and legally impermissible "non-marriage joint materialistic effort theory"). Since a common law marriage could not be recognized in Georgia, a common law wife was not entitled to alimony as a former spouse, and an annulment judgment against the common law marriage was therefore not required since there was no valid marriage in the first place.
What Happens to Other States’ Common Law Marriages?
Common law marriages from other states may or may not be recognized in Georgia. A common law marriage is a non-ceremony marriage that is entered into if the parties are both legally allowed to marry, agree to marry, and hold themselves out as married. There are many different laws in various states. Some allow common law marriages to be formed, others don’t, and others have expiration dates on common law marriages.
In Georgia, you may have formed a common law marriage in the past, but no longer. Currently, all common law marriages in Georgia are considered void unless they were created prior to January 1, 1997, which is when Georgia abolished common law marriage.
If you have a common law marriage formed in another state that allows common law marriages, you may be able to enforce the marriage, if prohibited by Georgia law. Prior to 1997, Georgia recognized common law marriages in Georgia only if the marriage occurred in Georgia and both parties were legal residents of Georgia. (Please note, that there are no longer any common law marriages recognized in Georgia, so this only pertains to prior marriages predating January 1, 1997 . ) If you had a common law marriage in a state that allowed a common law marriage, and you move to Georgia, you may be able to enforce a common law marriage created in another state through full faith and credit. The full faith and credit clause is part of the U.S. Constitution which mandates that each state must recognize legislative acts, public records, and judicial decisions of every other state. Therefore, if the common law marriage had been created prior to January 1, 1997, and both parties were legal residents of Georgia, Georgia would have to recognize the common law marriage if the parties ended their relationship. If that is the case, then upon no longer living together, the party who ends the relationship would have to file for an annulment under Georgia law within six months.
Once an annulment is granted, the court would view the common law marriage as not ever existing. However, there could be potential issues associated with children or property that became marital property as a result of the common law marriage. For that reason, it is strongly recommended that advice be sought from a family law attorney.
Ways to Avoid Common Law Marriage
Many people seek the same rights and protections that come with marriage; however, they are either not legally able to marry or do not desire to go through the legal requirements. Oftentimes, people are unclear of what options may be available to them and whether or not common law marriages can help. This FAQ addresses options you may have with respect to your relationship.
No, the law does not generally provide for legal alternatives to marriage if that is what you seek. You may not want to get married because you already have children and do not want more, you may be in an age or income group that makes more sense to avoid a marriage tax or you may simply not believe in the tradition of marriage and prefer to "go your own way." This is all fine and you are free under the Georgia law to live as you wish — it is not a crime to simply be together.
You may technically enter into a common law marriage, but that is really only necessary if you require the state to recognize your relationship for legal purposes or tax purposes. Again, you have many other options if you do not want to get married but you do want to formalize your relationship.
If you want the benefits of marriage without actually going through a marriage ceremony, consider entering into a domestic partnership. Under this legal arrangement, you and your partner will typically form some sort of contractual agreement (which can be informal) and there may be some rights and responsibilities that you each might undertake. The general idea is that this relationship is something stronger than mere cohabitation. Domestic partnerships work pretty well if you are in a same sex relationship that does not allow for legal marriage.
If you are a same sex couple and are married or are in a domestic partnership, you will have certain rights as they pertain to your property and finances. You can open a joint account so that you both have access to your combined money. You can even create joint credit or debit cards and may even have the right to have medical and financial information shared between you when one of you is ill. If you are not married, you could consider what is known as a cohabitation agreement. This agreement is actually just a contract and is enforceable by law. The specific terms are up to you, but generally, you may consider financial, property and liability issues.
Help and Legal Information
If you’re encountering issues surrounding what is and isn’t a marriage under Georgia law, then you may want to speak to an experienced Georgia family law attorney. A lawyer will speak with regarding your specific issue, give you options , and tell you how you should proceed in your situation. There are numerous family law attorneys in Atlanta and throughout Georgia that would be happy to assist you with your issue. You can find a list of these resources on the State Bar of Georgia site. Case law is valuable too, so if you’re seeking to read deeper into how the law functions, there are some cases that have come out on this very issue recently.